Information for Disclosers

Information for Disclosers

Public officials (disclosers) who suspect wrongdoing within the Commonwealth public sector can raise their concerns under the Public Interest Disclosure Act 2013 (PID Act).

Disclosers can expect that:

their disclosure will be properly managed

appropriate action will be taken in relation to any wrongdoing identified, and

they will receive protection from detrimental treatment or reprisal action and immunities from criminal, civil and administrative liability.

To make a disclosure under the PID Act, and receive the protections and immunities in the PID Act, certain criteria must be met and the disclosure must be made to a person authorised to receive it under the PID Act.

You can disclose information that you believe on reasonable grounds tends to show, wrongdoing within an Australian Government agency, or by a public official, or a Commonwealth contracted service provider.

You may disclose the following types of suspected wrongdoing:

Contravention of a law

Corruption

Conduct that perverts the course of justice

Wastage of public funds

Conduct that is an abuse of public trust

Conduct that unreasonably endangers health and safety or endangers the environment

Misconduct relating to scientific research, analysis or advice

Maladministration, including conduct that is unjust, oppressive or negligent

Conduct that is an abuse of a public official's position

Conduct that, if proved, would result in disciplinary action against a public official.

You cannot disclose:

the proper activities of intelligence agencies

disagreements that relate only to government policy (and related expenditure)

the actions of parliamentarians.

Not all matters will fall under the PID Act. It may be more appropriate for your disclosure to be dealt with under another process. Also, matters that have already been subject to a previous investigation process may not be further investigated under the Public Interest Disclosure Act 2013.

Public interest disclosures (PID) need to be made internally to the relevant Australian Government agency and to an appropriate official. These are called internal disclosures.

There are nominated people within Australian Government agencies, called authorised officers, who are responsible for receiving PIDs about their agency, or from officials who belong (or last belonged) to that agency.

Contact information for authorised officers should be published on the relevant agency's website. If you are a current public official, you may also make a PID to an authorised officer through your supervisor.

PIDs may be made in person, by telephone or in writing, including by email. The procedures for receiving disclosures differ between agencies. For more information on how to make a PID to your agency, refer to the information on its website.

You can remain anonymous. However, in some circumstances this may make it difficult, or even impracticable for the agency to investigate your disclosure. If you do not provide a means of contact, it will be difficult for the agency to communicate with you throughout the process.

In the majority of cases the relevant Australian Government agency is best placed to manage a disclosure about wrongdoing within its organisation.

Where you have reasonable grounds for believing it is not appropriate for an agency to handle a public interest disclosure (PID), the Commonwealth Ombudsman can receive the PID directly. A public official who makes a PID to the Commonwealth Ombudsman is taken to have made an internal PID, similarly to if they had made a PID directly to their agency.

In most cases, even where we do accept a PID, we will work closely with the discloser and the agency to allocate that matter back to the agency for investigation. Generally we will only investigate a matter under the PID Act where we think that the relevant Australian Government agency cannot handle the matter appropriately. For example, there may be a conflict of interest, confidentiality or reprisal issue that cannot reasonably be managed by the agency, and which would warrant intervention by the Commonwealth Ombudsman.

The Commonwealth Ombudsman cannot investigate a disclosure about action taken in relation to a person's employment. These matters need to be raised with the relevant Australian Government agency in the first instance.

Where a discloser is dissatisfied with the outcome of an agency's handling of a PID, they may complain to the Commonwealth Ombudsman . Where we investigate, we will look at whether an agency's handling of a PID and their decisions were lawful, reasonable and fair in all of the circumstances. We will generally not reinvestigate the matters disclosed in the PID.

There are special arrangements in the PID Act for disclosures made by individuals who work in, or have worked for, any of the following agencies:

Australian Security Intelligence Organisation (ASIO)

Australian Secret Intelligence Service (ASIS)

Australian Signals Directorate (ASD)

Australian Geospatial-Intelligence Organisation (AGO)

Defence Intelligence Organisation (DIO)

Office of National Assessments (ONA)

The Inspector-General of Intelligence and Security (IGIS) manages PIDs which relate to these agencies rather than the Commonwealth Ombudsman. The purpose of this arrangement is to ensure that damage is not done to Australia's security, defence, foreign relations and other national interests through the disclosure of intelligence or other sensitive information to persons who do not have appropriate level security clearances to receive that information.

If your disclosure meets the PID criteria, you are afforded immunity from civil, criminal or administrative liability (such as an action for defamation) that might otherwise apply for disclosing that information. It is a criminal offence under the PID Act for anyone handling the PID to disclose your identity as the discloser without your consent (subject to some exceptions).

You are also protected from reprisals or threatened reprisals including injury, dismissal or discrimination between you and other employees, even if you are only suspected to have made a PID. You can take legal action if you suffer detriment as a result of making a disclosure.

These protections and immunities continue to apply after a PID investigation is finalised. However, the PID Act will not protect you if you knowingly disclose false or misleading information, or from the consequences of your own wrongdoing which may be investigated as a resulted of the PID.

Disclosing information externally (to the media, the police and others)

In limited circumstances, you have a right to make an 'external disclosure' (PID) to anyone, except a foreign public official. To be protected by the PID Act, you must have already made an internal disclosure and either the investigation has exceeded the time limit (over 90 days or such longer time as permitted by the Commonwealth Ombudsman or IGIS) or you reasonably believe that the investigation or its outcome was inadequate. The external disclosure must not, on balance, be contrary to the public interest, and you may only disclose as much information as is reasonably necessary to identify the disclosable conduct.

In limited circumstances you may also make an 'emergency disclosure' to anyone, except a foreign public official, if you reasonably believe there is a substantial and imminent danger to health or safety or to the environment. You must not disclose any more information than is reasonably necessary in the circumstances to alert the recipient to the substantial and imminent danger. Before making an emergency disclosure, you should first make an internal disclosure, unless there are exceptional circumstances for not doing so. You should also wait for the internal disclosure investigation to be completed, unless there are exceptional circumstances to justify making an emergency disclosure before then.

An 'external disclosure' or 'emergency disclosure', must not include intelligence-related matters or sensitive law enforcement information.

If you do not meet the criteria for an external disclosure, you may be in breach of your obligations as a public official to keep information confidential and leave yourself open to prosecution or disciplinary action. You may also leave yourself open to civil action for defamation. Therefore if you are considering externally disclosing information, you should be aware how the PID Act will apply to your circumstances. The Commonwealth Ombudsman can provide you with general information on the PID Act and the protections and immunities. For advice on the application of the PID Act to your particular circumstances, you may want to seek independent legal advice.

Disclosing information to a lawyer

You may give information to a lawyer for the purposes of seeking legal advice or professional assistance about making a disclosure, provided you do not disclose intelligence information (defined in the PID Act).

The lawyer should have an appropriate security clearance if you are discussing information with a national security or other protective security classification.

Approach an authorised officer in your agency

To make a PID, approach an authorised officer (directly or through your supervisor) within the relevant agency. Each agency subject to the PID scheme should have information on its website about its authorised officers.

Talk to the Ombudsman's office about making a PID

If you are concerned about making a PID to the relevant agency, you may approach the Commonwealth Ombudsman to discuss your options.

Write to the Commonwealth Ombudsman PID Team at GPO Box 442, Canberra ACT 2601. Any envelopes or packaging should be marked 'Confidential Agency PID'

Email the Commonwealth Ombudsman at PID@ombudsman.gov.au. The subject line should indicate which agency the disclosure is about - this could be as simple as 'PID about Department of XYZ', or

Telephone the Commonwealth Ombudsman PID Team on 02 6276 3777 and follow the relevant prompts.

In making the report, please provide the Ombudsman's office with:

Information about the wrongdoing, or suspected wrongdoing, that you wish to disclose

Information about why you believe that the Commonwealth Ombudsman should investigate the matters raised, instead of the relevant Australian Government agency

Contact information (where you wish to remain anonymous, consider providing an alias email address or personal phone number to allow us to communicate with you throughout the process).

Talk to the IGIS about making a PID

Current or former public officials who wish to make a disclosure about any of the intelligence agencies should seek to do so with the agency concerned in the first instance, if this is possible. If this is not possible, or there are special reasons why this might be inappropriate (for example, if the potential discloser holds concerns about possible reprisal action if their identity is disclosed), potential disclosers should contact the Inspector-General of Intelligence and Security IGIS, as follows:

Disclosures made to IGIS relating to the listed intelligence agencies are deemed to be internal disclosures for the purposes of the PID Act.

Potential disclosers are reminded that they should not provide classified or sensitive material to IGIS upon initial contact with the office. Appropriate handling arrangements can be made subsequent to initial contact, as necessary.

Complain to the Ombudsman's office

If you have already made a public interest disclosure to an Australian Government agency and you are unhappy with how it was handled, you can complain to the Commonwealth Ombudsman.